The ‘most expensive legal aid system’ memes are demonstrably, palpably false. They are post-truths, engineered and spun before post-truth became fashionable. But let’s say for argument’s sake that they were right. Does that of itself establish the MoJ’s case? Is the ‘fact’ that we spend more on legal aid than anyone else a justification for reducing it? If this were true, is this not something we should celebrate? In its robust response to a government consultation in 2014 setting out further proposed fee cuts, the Bar Council made the following submission:
Statistics published by the World Bank state that in 2011 the United Kingdom spent 9.3 per cent of its GDP on health, whereas Romania spent only 5.8 per cent. The government does not use those statistics to argue that England and Wales must reduce its health spending to match that of Romania. Rather, there is pride that an excellent health service is provided; there should be equal pride in relation to the provision of excellent access to justice.6
Pursuing this line of argument exposes the barrenness of the comparative exercise. Plainly, if we were outspending every developed nation on earth by a statistically significant margin, that may be an indicator that our model of criminal justice provision is inefficient, but as that premise is demonstrably not correct, where does that leave us? Is 0.33 per cent of GDP per capita for a criminal justice system too high or too low? Should we be aiming to join Albania down at 0.2 per cent? Or chasing Slovenia and busting the 0.4 per cent mark? Abstract percentages tell us little about the efficiency of the system, and even less about its quality.
The key to the success of the government’s PR strategy is that by focusing on raw, contextless figures, it successfully obscures what criminal legal aid actually means to real people. The clichéd tabloid legal aid splash will shriek that child murderers have ‘pocketed’ a six-figure sum in legal aid – overlooking that this gross, VAT-inclusive figure, of which defendants do not personally receive a penny, may represent a year’s work for a dozen people – but fail to mention the individually modest sums that have saved innocents from irredeemable injustice.
They don’t tell you, for example, of the £1,000 legal aid bill that meant that my client of impeccable character, Marvin, was acquitted of a damaging allegation of stealing iPads from his employer, a canard which arose due to incompetent internal record-keeping. That gross figure, representing over 100 hours of pre-trial preparation and a full week at the Crown Court, would at private fee rates have been simply unaffordable for him.
They don’t tell you of Jane, a police officer wrongly accused of harassing a man she had never met, but who, having noticed her car on several occasions passing through the small village in which they lived, became convinced that she was stalking him. The few hundred quid in legal aid that covered that – surprisingly complicated – magistrates’ court trial and acquittal saved Jane’s entire career.
No space is ever made alongside the outrage for a balanced reminder of our extended tradition of wrongful convictions that trip off the tongue – the Birmingham Six, the Guildford Four, the Cardiff Three – which were only overturned, and innocent people freed, thanks to the availability of legal aid.
And, of course, no comment is ever offered by the itinerant minister of the hour to explain that, where significant sums have been expended on convicting a guilty child rapist who does not have the means to repay it, this is still public money well spent, representing as it does the cost of ensuring that a fair trial has been held, and that we are as sure as we can be that the right man has been safely convicted.
This essential purpose of legal aid expenditure, to protect the innocent and safely convict the guilty, is the truth that government tries to keep at arm’s length from the public, no doubt out of fear at the swell of resistance that would surface against cuts if legal aid’s true worth was honestly discussed and made known. It is far politically smoother to obfuscate with distorted figures and snappy ‘fat cat’ jibes than meet the subject on its merits. Which brings us, neatly, to the next part of the myth.
Fat Cats and Skinny Kitties
Here, things get a little gauche. Because I’m afraid we need to consider the grubby subject of what barristers get paid, due to the recurring implication that the main driver of rising legal aid costs has been leeching lawyers. Again, the facts debunk the spin.
While total expenditure on criminal legal aid did until the mid-2000s continue to rise, peaking at £1.19 billion in 2004/5, this was largely attributable to the surge in criminal prosecutions coming to court. Between 1997 and 2008, the Labour government created over 3,600 new criminal offences – roughly a new offence every day.7 The complexity of criminal law and proceedings increased staggeringly over that period, as the government legislated reflexively in shameless obeisance to every distorted tabloid commentary on ‘soft judges’ and ‘broken laws’. As proceedings became more numerous, complicated and lengthy, both the legal aid and Crown Prosecution Service budgets increased, the latter by more than the former.8 In 2007, the House of Commons Constitutional Affairs Committee heard evidence that the significant rise in Crown Court legal aid costs was largely down to increase in volume of cases, propelled by the creation of more criminal offences, and concluded that ‘the average cost per claim did not and has not significantly increased’.9 Legal aid had therefore increased not because of fat-cat lawyers exponentially milking the taxpayer, but because the state was increasing the volume of cases.
And the figures, it has to be repeated, are always gross. They always include a fat wodge of VAT and tax that is recycled back into public coffers. Legal aid firms grossing millions of pounds a year are not pocketing that as profit – they are using it to pay staff, rent and the everyday costs of running a business. Those eye-popping numbers in the tabloids – where they print pictures of QCs in their ceremonial wigs with accompanying tables of their whopping incomes – usually represent several years’ worth of work, which, due to the delays in criminal cases and the inefficiencies of the Legal Aid Agency, can take years for payment to come through.
In fact, at the time the government was making its case for cuts in 2011, the fat cats were to the contrary becoming rapidly scrawny. Which brings us to the question: what do criminal barristers earn?
We should start with full disclosure: it would appear right to say that back in the 1980s, criminal legal aid was a bit of a gravy train. I say ‘it would appear’ as I cannot speak from first-hand experience, but senior colleagues fight back tears as they reminisce over the old days when you would bill by the hour, and assessors would wave through excessive guesstimates like a bored teenage car park attendant. ‘Time was,’ my very learned opponent in a trial once grumbled to me as he worked out his daily fee, ‘that on a piddly little case like this, you’d pluck a number out of the air, stick it on a bill and then go and buy a little terraced house somewhere in the north to let out to students.’ He was not alone in sharing such fond memories. While still the poor relations to commercial and civil brethren at the Bar, crime did use to pay, and very well. To the extent that my forebears milked, some might go as far as to say abused, the largesse of legal aid, the legal profession is to blame for its reputation.
But criminal practice in the twenty-first century is vastly different.
Hourly rates have gone. As of 1997, the bulk of defence cases have been paid on a reduced ‘graduated fees’ scheme, where the fee is worked out using a complicated formula factoring the type of case, the number of pages of evidence and the length of the trial in days. It is immaterial how much work you actually do. So if you have a difficult or vulnerable client who requires many hours of contact time before and after court sitting hours, or if an esoteric point of law arises requiring days of research and many hours spent drafting and honing written legal argument, that extra work is gratis. And of course, as the law and procedure becomes more complex, the volume of extra gratis work involved in straightforward cases increases. If the court decides that it wants to suddenly hold an impromptu hearing because the CPS hasn�
�t served a piece of evidence, I either attend court the next day for free, giving up whatever other paid work I might have had in my diary that day, or I pay a colleague to go in my stead. Some days, therefore, we earn nothing. Other days, when our train ticket for a far-flung case costs £200, we literally pay to work. I don’t say any of this expecting sympathy – I chose this career with my eyes open, and others toil harder in far more unpleasant conditions for even less reward – but I share a little of the reality as a counterweight to the government line.
Of course some days pay better for relatively little work. And some cases, serious, complex cases, pay very well. If you are, unlike me, excellent at the job, you can still earn a very good living from crime. If, as a society, we want to catch the biggest, slipperiest criminals, usually white collar, complex tax frauds or international drug cartels, it is not cheap. The evidence is usually voluminous; hundreds of thousands of pages. You need very good lawyers to get to grips with the complexities of the case, and present it to a jury. And equally good lawyers for the defence. And these, the very best QCs and experienced juniors, will receive an attractive headline figure for their experience and talent. A teensy fraction of the incomes of their seven-figure-billing commercial law counterparts, but their gross income will tip into the six figures. They, however, are the superstars. For us mortals, who have seen an average real-terms cut in legal aid of 37 per cent between 2007 and 2013, we hover around a median annual net income of £27,000.10 Which is not to be sniffed at. It’s more than the national average. But, to give a little perspective, it’s less than the starting salary for a graduate manager at Aldi, who, the job spec indicates, will be working fewer than the 60 or 70 hours that goes into a barrister’s week.11
At entry level, pay can be brutally low. You start pupillage having racked up debts of up to £75,000. You are dependent on doing magistrates’ trials for £75 a day – including prep and travel – and the occasional glamorous trip into the Crown Court to cover somebody else’s mention hearing. You will put in a minimum of 60-hour weeks for what works out at around £5 per hour. A friend of mine calculated that in her first full year of qualified practice, she would literally have been better off on benefits. For the first few years, you will gross between £10k and £20k a year. For your peer at a top commercial chambers or at a big City solicitors’ firm, you can add a zero.
Again, it’s a lament that appears calculated to generate sympathy, but that’s not what I’m seeking. Working on publicly funded cases provides a genuine and lasting sense of reward, for the soul if not the purse. There is very little that tops the satisfaction of securing an acquittal for a defendant who, without legal aid, would not have been able to defend themselves. Knowing that you are part of a system that extends these protections to the most vulnerable, and often least sympathetic, people in society can reaffirm one’s dwindling faith in our humanity, and society’s fidelity to our first principles. That, I dare say, is the reason why, despite our constant raging against the machine, so many of us stick with legal aid work.
So I don’t seek sympathy for my career choice, not a bit; rather, I raise the issue of our sometimes-humble incomes to reinforce this simple point: legal aid cuts were not necessary. We were not outspending every other country. Fistfuls of fifties were not being stuffed down the gullets of fat-cat lawyers. Legal aid was being spent on paying professionals a modest income to do a lot of very unpleasant work that the state kept generating. And, surprisingly, when the state stopped prosecuting as many people, the spend started to fall.
But such pleas had no effect on the MoJ. Indeed, they welcomed them. Because the louder we lawyers protested about legal aid myths, the greater was the tumult under cover of which the government could open up its second front. Whilst purring that ‘generous legal aid’ would still be available for those in need of it, the Ministry set about removing it entirely from certain classes of people.
Which brings us back to the Innocence Tax.
The Dawn of the Innocence Tax
If you had been charged with causing death by dangerous driving before 1 October 2012, you would have had two options. You could either have availed yourself of legal aid, which was available to all defendants in Crown Court cases. Or, if you didn’t like the look of what public funds gets you (i.e. someone like me), you could have paid privately for a better class of representation.
Depending on your income, you might have had to pay ‘contributions’ towards your legal aid bill, but you would recoup that money if you were acquitted. Similarly, if you had paid privately and were acquitted, you were entitled to a ‘Defendant’s Costs Order’ (DCO), by which the state would pay costs ‘of such amount as the court considers reasonably sufficient to compensate [the defendant] for any expenses properly incurred by him in the proceedings’. In other words, your legal bill, or the vast bulk of it, would be taken care of by the state, paid out of what was referred to as ‘Central Funds’. It was recognized that you hadn’t chosen to be prosecuted, and as the winning party to the litigation, your reasonable costs would be reimbursed. Pounds and pence would usually be thrashed out between the solicitor and the Legal Services Commission (the predecessor to the Legal Aid Agency), but as a rule, an acquitted defendant would not be out of pocket for his suffering.
So what changed?
The public having been assured of the unsustainability and immorality of the legal aid budget, the terrain was primed for the enactment in May of that year of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. The Act attracted attention at the time and afterwards for its wholesale uprooting of civil legal aid. Hooting the same false claims over the civil legal aid bill as per the criminal, the government removed legal aid from swathes of areas of law where vulnerable people were most desperately in need of access to justice, such as family law, welfare, housing, immigration, medical negligence and debt. It was described by Labour peer and shadow legal aid spokesman Lord Bach, himself an experienced former criminal barrister, as ‘picking on people who can’t defend themselves’ and ‘a bad day for British justice’.12 His comments were by no means unique. Law centres across the country closed, legal aid firms went to the wall and ordinary people found themselves without any help in enforcing their basic rights. Abused women were forced to confront their violent ex-partners alone in family proceedings.13 Vulnerable tenants were at the mercy of rogue, unimpeachable landlords. Children were expected to negotiate tortuous immigration proceedings by themselves. Little surprise that in 2016 Amnesty International published a panicked report warning that the cuts have ‘decimated access to justice’.14
But what also slipped in, under Schedule 7 of the Act, was a change to Defendant’s Costs Orders. As of 1 October 2012, private-paying defendants charged in criminal proceedings would no longer be able to recoup their costs. Defendant’s Costs Orders in the Crown Court were abolished. The rationale was that, as legal aid is universally available, the taxpayer should not be required to meet the commercial-rate legal costs of those who choose to go private. It’s like healthcare, the argument ran. You are not obliged to use the NHS, but if you snub it for BUPA, you foot the bill.
This argument was prefigured by a rash of conveniently positioned tabloid tales of celebrities, including footballer Steven Gerrard ‘pocketing’ over £300,000 on a Defendant’s Costs Order following his acquittal of a charge of affray at Liverpool Crown Court.15 And it had a certain superficial charm to it.
But tug at the theory and it unravels. Because, considering the health analogy, the state by and large does not intentionally hospitalize its citizens. If it did, and it started circumscribing the manner in which the people whose limbs it had snapped could seek treatment, the injured might feel slightly aggrieved. But perhaps more persuasively, there is an issue of equality of arms here. Legal aid may not afford you representation of the same calibre as the prosecution. Under legal aid, the presumption is that you will be represented by a single junior barrister. For particularly complex or serious cases,
you can apply to a judge for a second junior barrister to share the workload, or in the most serious cases for legal aid to cover a QC. But there is no guarantee. The test for ‘extending the legal aid certificate’ is strict, and over the last few years has become increasingly restrictive, as judges have been repeatedly mithered by secondary legislation to reduce the number of applications they grant. The fact that the prosecution has instructed a QC, for example, does not mean that you as a defendant are automatically entitled to one.
It may be, therefore, that, as a falsely accused defendant being prosecuted by a vastly experienced silk, you would reasonably wish for someone similarly excellent to defend you. And if legal aid won’t stretch to it, and with no ‘top-up’ system permitted, you may find yourself with no choice but to go private. And if you did, under this scheme, you would have been left to pay the costs, whatever the outcome at trial. This was the fate visited upon Conservative MP Nigel Evans in 2014, who, having chosen to pay privately to successfully defend himself of allegations of sexual assault, found himself £130,000 poorer due to the reforms poetically brought in by his own party.16
The Secret Barrister Page 21
